RULING
1. The appellant filed an appeal through the memorandum of appeal dated 21st November 2024 praying for orders that the appeal be allowed, the judgment of the trial court be set aside, the appellant be awarded general damages and special damages in the sum of KShs 5,663,600/=, the costs of the appeal and the trial court be awarded to the appellant with an order that interest on special damages be from the date of filing suit in the trial court and interest on general damages from the date of judgment.
2. The respondent has filed an application by way of notice of motion dated 5th September 2025 seeking an order to strike out the appeal lodged on 21st November 2024 for being incompetent and defective for two reasos:
a. For being filed out of time and thereby in breach of section 79G of the Civil Procedure Act (Cap. 75) Laws of Kenya.
b. For lack of service of the memorandum of appeal and record of appeal on the Respondent.
3. The grounds in support of the application are laid on the face thereof and supported by the affidavit of George Onyango Liewa, sworn on 5th September 2025. They are that:
a. The trial court rendered its judgment on 20th September 2024. Accordingly, the 30-day period within which the appellant was required to lodge an appeal expired on 21st October 2024. The Appellant, however, filed its appeal on 21st November 2024, after the lapse of the statutory period prescribed by Section 79G of the Civil Procedure Act.
b. No leave was sought or obtained for extension of time to file the appeal.
c. The Appellant has never served the memorandum of appeal and Record of Appeal on the Respondent, almost a year after filing the Memorandum of Appeal.
4. The application is opposed through the replying affidavit sworn on 16th September 2025 of Livingstone Maina Ombete, advocate for the appellant. He deposes that the appellant filed the memorandum of appeal on 21st November 2024 after obtaining a certificate of delay from the Deputy Registrar of this court. He has annexed a copy of the said certifivcate of delay.
5. On the indication that the appellant failed to serve the memorandum of appearance and the record of appeal, the respondent deposes that the respondent was represented by the firm of Otieno Ogola & Co. Advocates and there is no indication that the former advocates were not served. The present advocates only came on record herein after the appellant was directed by the court to serve a mention notice upon the former advocates who had been served with the memorandum of appeal and the record of appeal and upon doing so, the current advocates came on record. When they came on record, they never served the notice of appointment upon the advocates for the appellant.
6. The appellant deposes further that Order 42 Rule 12 of the Civil Procedure Rules provides that the memorandum of appeal is to be filed when the Registrar of the High Court has notified the appellant that the appeal has been admitted for hearing. The respondent has not shown that the Registrar sent the said notice and the appellant then failed to serve the memorandum of appeal.
7. The application was disposed of on the written submissions of counsels for both parties.
8. I have considered the grounds in support of the application and the response thereto as well as the submissions by learned counsels for the parties. There are no submissions to support the ground that the appeal was filed out of time and for that reason, as submitted by learned counsel for the appellant/respondent, I find that it is apparent that the respondent/applicant abandoned that ground of the application.
9. The issue for determination is whether the appellant failed to serve the memorandum of appeal upon the respondent and if so whether such failure to serve the memorandum of appeal and record of appeal is fatal to the appeal so that the same is for striking out.
10. On the issue of failure to serve the memorandum of appeal upon the respondent, I note that the respondent has failed to respond to the appellant’s deposition that the same was served upon the former advocates in the trial court. Without evidence from those advocates that they were never served, it is difficult to find that the appellant was not served especially considering that former advocates were subsequently served with the notice for mention as directed by the Deputy Registrar whereupon the present advocates came on record.
11. I have considered the various decisions cited by learned counsel for the applicant. They are not helpful in determining the issue herein where a former advocate has not disputed service of the memorandum of appeal.
12. I therefore find that ground to be without merit and the same fails.
13. I do not think it is necessary but all the same, I will comment on counsel for the appellant’s contention that the advocate for the respondent is not properly on record. If he wished the court to consider and make a determination on the same he ought to have filed an application to which the respondent would have responded.
14. In the result, I find that the application by the respondent/applicant herein has no merit and the same is dismissed with costs to the appellant/respondent.
15. Parties had filed submissions on the appeal. Judgment on 18th June 2026.
16. Orders accordingly.
ANDAYI W. F.
JUDGE
Written, dated and signed and delivered on the Virtual platform, Microsoft Teams this 8th day of May 2026.
In the presence of:
N/A for the Respondent/Applicant.
N/A for the Appellant/Respondent.
Ummu: Court assistant
1. The appellant filed an appeal through the memorandum of appeal dated 21st November 2024 praying for orders that the appeal be allowed, the judgment of the trial court be set aside, the appellant be awarded general damages and special damages in the sum of KShs 5,663,600/=, the costs of the appeal and the trial court be awarded to the appellant with an order that interest on special damages be from the date of filing suit in the trial court and interest on general damages from the date of judgment.
2. The respondent has filed an application by way of notice of motion dated 5th September 2025 seeking an order to strike out the appeal lodged on 21st November 2024 for being incompetent and defective for two reasos:
a. For being filed out of time and thereby in breach of section 79G of the Civil Procedure Act (Cap. 75) Laws of Kenya.
b. For lack of service of the memorandum of appeal and record of appeal on the Respondent.
3. The grounds in support of the application are laid on the face thereof and supported by the affidavit of George Onyango Liewa, sworn on 5th September 2025. They are that:
a. The trial court rendered its judgment on 20th September 2024. Accordingly, the 30-day period within which the appellant was required to lodge an appeal expired on 21st October 2024. The Appellant, however, filed its appeal on 21st November 2024, after the lapse of the statutory period prescribed by Section 79G of the Civil Procedure Act.
b. No leave was sought or obtained for extension of time to file the appeal.
c. The Appellant has never served the memorandum of appeal and Record of Appeal on the Respondent, almost a year after filing the Memorandum of Appeal.
4. The application is opposed through the replying affidavit sworn on 16th September 2025 of Livingstone Maina Ombete, advocate for the appellant. He deposes that the appellant filed the memorandum of appeal on 21st November 2024 after obtaining a certificate of delay from the Deputy Registrar of this court. He has annexed a copy of the said certifivcate of delay.
5. On the indication that the appellant failed to serve the memorandum of appearance and the record of appeal, the respondent deposes that the respondent was represented by the firm of Otieno Ogola & Co. Advocates and there is no indication that the former advocates were not served. The present advocates only came on record herein after the appellant was directed by the court to serve a mention notice upon the former advocates who had been served with the memorandum of appeal and the record of appeal and upon doing so, the current advocates came on record. When they came on record, they never served the notice of appointment upon the advocates for the appellant.
6. The appellant deposes further that Order 42 Rule 12 of the Civil Procedure Rules provides that the memorandum of appeal is to be filed when the Registrar of the High Court has notified the appellant that the appeal has been admitted for hearing. The respondent has not shown that the Registrar sent the said notice and the appellant then failed to serve the memorandum of appeal.
7. The application was disposed of on the written submissions of counsels for both parties.
8. I have considered the grounds in support of the application and the response thereto as well as the submissions by learned counsels for the parties. There are no submissions to support the ground that the appeal was filed out of time and for that reason, as submitted by learned counsel for the appellant/respondent, I find that it is apparent that the respondent/applicant abandoned that ground of the application.
9. The issue for determination is whether the appellant failed to serve the memorandum of appeal upon the respondent and if so whether such failure to serve the memorandum of appeal and record of appeal is fatal to the appeal so that the same is for striking out.
10. On the issue of failure to serve the memorandum of appeal upon the respondent, I note that the respondent has failed to respond to the appellant’s deposition that the same was served upon the former advocates in the trial court. Without evidence from those advocates that they were never served, it is difficult to find that the appellant was not served especially considering that former advocates were subsequently served with the notice for mention as directed by the Deputy Registrar whereupon the present advocates came on record.
11. I have considered the various decisions cited by learned counsel for the applicant. They are not helpful in determining the issue herein where a former advocate has not disputed service of the memorandum of appeal.
12. I therefore find that ground to be without merit and the same fails.
13. I do not think it is necessary but all the same, I will comment on counsel for the appellant’s contention that the advocate for the respondent is not properly on record. If he wished the court to consider and make a determination on the same he ought to have filed an application to which the respondent would have responded.
14. In the result, I find that the application by the respondent/applicant herein has no merit and the same is dismissed with costs to the appellant/respondent.
15. Parties had filed submissions on the appeal. Judgment on 18th June 2026.
16. Orders accordingly.
ANDAYI W. F.
JUDGE
Written, dated and signed and delivered on the Virtual platform, Microsoft Teams this 8th day of May 2026.
In the presence of:
N/A for the Respondent/Applicant.
N/A for the Appellant/Respondent.
Ummu: Court assistant